Tullio Treves, Conflicts Between the International Tribunal for the ...

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816 INTERNATIONAL LAW AND POLITICS [Vol. 31:809tion of the Tribunal or of another court or tribunal competentunder the Convention. This can happen for several reasons:1) the effect of reservations to acceptances of the optionalclause of Article 36, paragraph 2; 2) the Statute of the Court;or 3) limitations and optional exceptions under Articles 297and 298 of the Convention. In any such situation, each courtwould be competent to rule on different questions. Whilethere would be no overlapping litispendence strictly speaking,the connection between the questions submitted to the Courtand to the Tribunal would make it impractical and risky thatthe Court and the Tribunal hear in parallel (or in sequence)the different connected questions.The parties must be flexible and must try to concentratethe whole of their dispute before one court or tribunal. Theyshould consider granting competence over the entire case tothe one court or tribunal that has been seized. The partiesmay do this by their acquiescence, and by the forum prorogatumclauses included in the Rules of the Court and of the Tribunal.22 States also can prevent such a situation by drafting skillfullytheir declarations. An interesting example is the declarationof June 25, 1996, in which Norway modified its acceptanceof the Court’s compulsory jurisdiction. The declarationconfirms such acceptance:provided, however, that the limitations and exceptionsrelating to the settlement of disputes pursuantto the provisions of, and the Norwegian declarationsapplicable at any given time to, the United NationsConvention on the Law of the Sea of 10 December1982 . . . shall apply to all disputes concerning the lawof the sea. 23Through this declaration, Norway excludes all disputesthat cannot fall under the compulsory jurisdiction of a courtor tribunal according to the Convention, either because of thelimitations set out in Article 297 or because of a declaration byNorway utilizing an optional exception set out in Article 298.In this way, with respect to disputes concerning the law of the22. See Rules of Court, International Court of Justice, art. 38, para. 5;Rules of the Tribunal, Tribunal for the Law of the Sea, art. 54, para. 5.23. Declarations Recognizing Jurisdiction: Norway, 1995-1996 Y.B. I.C.J. 108,109.
1999] INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA 817sea, Norway accepts the jurisdiction of the Court, under Article36, paragraph 2, of the Statute, with exactly the same scopeas it has under the Convention’s compulsory jurisdictionclauses—and their limitations and exceptions.In light of this, it makes sense for states that have acceptedthe optional clause to make a declaration of preference for theCourt under Article 287 with regard to disputes with states thatalso have made the declaration—not only when they have notaccepted the optional clause, but also with regard to disputeswith other states having accepted the clause. The Court’s jurisdiction,when excluded by reservations to the acceptance ofthe optional clause, may be “restored” on the basis of Articles286 and 287. It also makes sense for states that have acceptedthe optional clause to prefer the Tribunal in their declarationsunder Article 287. The states that are in this category (Austria,Greece, Portugal, and Uruguay) will be under the compulsoryjurisdiction of the Court for disputes with other states acceptingthe optional clause and under the jurisdiction of theTribunal for disputes with other states preferring the Tribunalunder Article 287. If reservations to the optional clause excludethe jurisdiction of the Court, in most cases, due to thelow number of preferences for the Tribunal, arbitration will bethe applicable procedure.V. THE COURT, THE TRIBUNAL, AND DECLARATIONS MADEUNDER ARTICLE 287 OF THE LAW OF THESEA CONVENTIONIt may be said that the Court and the Tribunal are in competition(not in conflict!) to attract declarations of preferenceunder Article 287 by states parties to the Convention. It seemsmore important, however, to note that the Court and the Tribunalare in competition, together and not one against theother, with arbitration. Arbitration is the procedure that statesparties can declare under Article 287, that they are presumedto prefer in the absence of a declaration, and that applieswhenever two parties to a dispute have not expressed the samepreference.
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